The Incredible Shrinking Woman

ELLE writers on Justice Anthony Kennedy's Gonzales v. Carhart

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High Court Chainsaw Massacre
In their latest abortion decision, the justices used words as lethal weapons

Written by Justice Harry Blackmun, the majority decision in the case of Roe v. Wade—the 1973 Supreme Court ruling that guaranteed a woman's right to choose—is eloquent, thoughtful, moving, and, at moments, heart-stoppingly beautiful. After acknowledging "the sensitive and emotional nature of the abortion controversy" and "the deep and seemingly absolute convictions that the subject inspires," the text goes on to list the factors that might influence these convictions: religion, morality, philosophy, experience, and "one's exposure to the raw edges of human existence."

"The raw edges of human existence"—how much compassion is concentrated in that single phrase, how much awareness of the sorrow and confusion that may surround the decision to terminate a pregnancy, even when a woman has the best reasons for doing so and is certain of her choice. Throughout Roe v. Wade the words "woman" and "pregnant woman" are used repeatedly, in ways that make it clear that these words mean "American citizen," and the legal argument attempts to determine the best way to safeguard that citizen's constitutional rights. Ultimately the Court found the Fourteenth Amendment, guaranteeing personal liberty and protecting privacy, to be the decisive factor: "Maternity, or additional offspring, may force upon the woman a distressful life and future.... Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with an unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it."

If the language of Roe v. Wade is emotionally sympathetic and articulate, the language of Gonzales v. Carhart, the recent Supreme Court decision upholding the federal ban of partial-birth abortion, can be as crude and bloody-minded as that of a slasher film. Tellingly, the first "woman" we hear about in the ruling is not consciously facing the difficult dilemma of whether to terminate a pregnancy. In fact, she is unconscious, anesthetized so that the doctor (there are no "obstetricians" here, but only "doctors" and "abortion doctors") can perform a cruel and terrifying procedure. "The friction causes the fetus to tear apart....a leg might be ripped off the fetus...."

The appalling clinical descriptions and gross details go on for pages. "'The baby's little fingers were clasping and unclasping....'" The language, the terminology, and the focus are so inflammatory and mercilessly sensational that, at times, you almost feel that Justice Anthony Kennedy, who authored the majority decision, is taking a perverse pleasure in the horrors he is describing. We hear about "the life of the unborn" and "the life within the woman," but not once about the life of the woman. Indeed, the most important—the only important—thing about her life is its potential for motherhood. ("Respect for human life finds an ultimate expression in the bond of love the mother has for her child.") Her cervix and uterus are mentioned, but never her brain, which can make an informed choice. This may explain why, in the Court's view, the woman must be paternalistically protected from the "regret" that may come from allowing "a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form." (Interestingly, in her minority opinion, Justice Ruth Bader Ginsburg takes exception to Kennedy's language, to the repeated use of the words "abortion doctor," "unborn child," and "baby"; she seems pained by the sensationalism of the Court's vocabulary.)

The great irony is that this new ruling, so perfectly in accord with the "right-to-life" position, is so intensely focused on and written entirely in the language of violent death; whereas Roe v. Wade is all about life: its complexities and quandaries, its hardships and hopes, the rocks and the hard places that any of us may be caught between when we find ourselves at the raw edges of human existence.—Francine Prose

Victors? Victorians!
The majority might as well be living in the nineteenth century, given how it infantilizes American women under the guise of elevating them.

Don't you love it? Here we are in the twenty-first century, and five men have just decided that they know what's good for us. Us women, which they are not. Us prospective mothers, which they can never be. Just when we thought that patriarchy was an outdated clicheacute; of die-hard feminists, up step the Supremes to breathe new life into old nightmares.

Here is Justice Kennedy, in his wisdom: "Whether to have an abortion requires a difficult and painful moral decision....While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort.... Severe depression and loss of esteem can follow."

So, he rules, we'll spare you all that grief and sorrow by deciding you can't have a partial-birth abortion (if your state so decides), even though there was substantial testimony from medical experts and groups, such as the American College of Obstetricians and Gynecologists, that this now potentially criminal form of second-trimester abortion is sometimes safer for women than other forms. This is for your own good, of course.

Where have we heard this before? You are too mentally challenged to master the rigors of a higher education, so we'll keep you out of universities for your own good. You are too gentle for the rough-and-tumble world of business, so we'll keep you out of the high-paying professions for your own good. You don't understand complicated political issues, so we'll spare you the confusion of voting, for your own good. You are too frail for competitive sports, so we'll keep you from running or swimming or discovering your body's capabilities, for your own good. And now paternalism's last stand is over motherhood. You don't know when you are ready to become a mother; whether you are suited to become a mother; what to do when something has gone dreadfully wrong with your pregnancy. So you can't decide.

When your parents tell you something is for your own good, it usually means something unpleasant, like eating your spinach or getting a shot. When grown men tell grown women something is for their own good, it's usually something imprisoning. As Justice Ginsburg put it in her magnificent dissent, "[T]he Court deprives women of the right to make an autonomous choice, even at the expense of their safety."

When this particular federal law was signed by President Bush, a female editorialist for Toronto's The Globe and Mail expressed pity for U.S. women. "I feel chewed up with sorrow for American women," she wrote. I don't know about you, but I don't want Canadian women feeling sorry for me. I want us to tell the dangerously benighted chauvinists in our midst, in our Congress, and on our highest court, that they do not know what's good for us. Let us be the judge.—Ann Crittenden

Supreme Court justice Ruth Bader Ginsburg, so slight, so frail, so like your bubbe in her tight bun and Boca-size glasses, was pissed.
When she read aloud from the bench a summary of her dissent in Gonzales v. Carhart, her words were incandescent, shimmering with rage and steely reason. The protection of reproductive rights, she said, is not a matter of "some vague or generalized notion of privacy" but of "a woman's autonomy to decide for herself her life's course, and thus to enjoy equal citizenship stature."

She lit into the majority's decision for its open "hostility" toward Roe. She also faulted the argument that a health exception is unnecessary as it would apply to a small percentage of women, writing with vivid italics that "the very purpose of a health exception is to protect women in exceptional cases." In summarizing her dissent, Ginsburg blasted the paternalistic assumption that the Court shields women by denying them the option to have abortions they might "regret." She said, "This way of protecting women recalls ancient notions about women's place in society and under the Constitution—ideas that have long since been discredited." In short, Ginsburg concluded, the idea that the decision "furthers any legitimate governmental interest is, quite simply, irrational."

The 74-year-old justice had every reason to be livid. "Her life has been about achieving equal rights and opportunities for women under the law," says the pro-choice activist Kate Michelman. "This ruling must have been extremely painful for her."

No doubt it was. Since the 2005 retirement of Sandra Day O'Connor, Ginsburg has been the only woman on a bench lousy with alpha males. She has been open about her loneliness, commenting that while she and O'Connor often disagreed, they shared "certain sensitivities that our male colleagues lack." When she first joined the Court, she and O'Connor were given T-shirts that read, I'm Sandra, Not Ruth, and I'm Ruth, Not andra. It's a knee-slapper, until you remember that at the time of her confirmation Ginsburg predicted, "[I]n my lifetime, I expect to see three, four, perhaps even more women on the High Court Bench."

Here she is, 14 years later, the lone woman, writing her response to a decision that concretizes a terrifying turn on the part of the Court: the assignment of a higher value to fetal well-being than to female well-being.

Born and raised in Brooklyn, Ginsburg got her law degree from Columbia University in an era when it was not easy for a woman, a Jewish woman, to pursue a legal career. She cowrote a landmark casebook on sex discrimination, was the first woman tenured at Columbia Law School, and cofounded the American Civil Liberties Union's Women's Rights Project. Appointed to the U.S. Court of Appeals in 1980, Ginsburg was nominated by Bill Clinton in 1993 to fill the seat of retiring Justice Byron White, the man who wrote a dissenting opinion in Roe. "She's paved the way for women to be treated as full equals in society, not to be defined by the maternal roles they choose," Michelman says.

Ginsburg understands the balancing act intimately: Her first child was one year old when she entered law school, and she hid her second pregnancy under loose clothes while an untenured professor. It helped that her husband of 53 years, the tax lawyer Martin Ginsburg, took domestic partnership literally; the two divided child-care duties, and he does most of the cooking, even baking birthday cakes for her Supreme Court clerks and fellow justices. His wife, reserved and soft-spoken, has been taken for a frosty intellectual. Yet how could a woman whose passions have included opera and horseback riding and waterskiing be such a thing? Now, try this one on: She is a close friend of her fiercest ideological opponent, Justice Antonin Scalia. In her Supreme Court chambers there is a photo of them riding an elephant together.

Since we've been in the clutches of an administration intent on ripping up the road that women like Ginsburg laid down, she's become a cultural hero. John Edwards, Bill Richardson, and Christopher J. Dodd, when citing their favorites among living justices at the April Democratic debate, all named her. She is recognized as a last bastion of enlightened thinking in federal law. And even though she is unable, with Justices John Roberts and Samuel Alito tipping the Court back in time, to prevent rulings like Carhart (which, as she wrote in her dissent, "chip away" at rights central to women's lives), Ginsburg showed in her dissent that she intends to wedge her small shoulder firmly against the door and do her damnedest to hold back the ideological battering ram of the right.

But all that last-bastion business is a little sad. How exhausting to be fighting this battle all over again. How draining for a woman in her mid-seventies, who powered through colorectal cancer in 1999 without missing a Court session. Ginsburg has said that she will continue to do her job for as long as she is able. It's unfair, really. After all, maybe she'd like to retire too-ride a few more elephants, see a few more operas.

But for now, we have to rely on her to keep her word. This small woman of steel is all we have.—Rebecca Traister

It Could Happen to You
How an affluent, educated girl couldn't face the fact that she was pregnant—until it was almost too late

"The problem is your liver," the Italian dottore said as he felt my stomach. This seemed unlikely. I was 18 years old and had no history of liver problems. It was 1980. I was in Florence for the summer, studying philosophy. I hadn't been feeling well. Nauseated, exhausted, bloated. "Fegato...your liver," the dottore repeated. He was the third doctor in Florence to make this pronouncement.

It took a while for me to grasp what was happening: the weight gain, the sore breasts, the lethargy. As hard as this is to admit—still, all these years later—at the age of 18, I did not comprehend that sexual intercourse with my high school boyfriend, particularly sexual intercourse with no birth control, particularly sexual intercourse with no birth control during the middle of my menstrual cycle, would result in this physical state that had nothing to do with my liver.

When I say I didn't comprehend, I don't mean to imply that I'd been snoozing during Sex Ed. I mean that I had a glitch in my psyche, a profound desire to remain a little girl even as my body and reproductive system matured. From the time I got my first period, I lived in denial. I felt no womanly pride in the rite of passage, and invariably I'd be surprised each month when it began.

Accidents—I'd had many. I bled through my white cotton panties, I bled through sheets, even onto mattresses. And each time I saw that dark red stain, a numbness came over me, a strange, mute quality, as if this thing—this corporeal-woman-thing—was happening to someone else. At 16, when I started to have sex, this disconnection persisted; sex, it seemed, was about my boyfriend's VW beetle, Springsteen blaring on the stereo, and a sense of belonging—a sense, in fact, of carefree youth.

But now, here I was—11 weeks pregnant—in Italy. Far away from home, from my parents who, I was certain, would die if they found out. I paid a visit to the only American adult I knew in Italy, an old friend of my mother's who was a cool artist and therefore, I figured, would understand. She gave me a hug, poured me a glass of wine, put me to bed, then called my mother—who turned out to be more modern and resourceful than I'd previously given her credit for. My mother called her gynecologist, who knew a doctor in London—London having been the destination of choice for affluent Manhattan women before Roe v. Wade.

"You're going to be a good girl now," the British nurse said, leaning over my bed as I came out from under anesthesia. Her kindly face loomed from beneath her nun's habit. She repeated herself. "You're going to be a good girl now, aren't you?" It was more of a command than a question.

I was a good girl—an immature, complicated good girl lost in a woman's body. I could have wound up 12, 13, 14 weeks pregnant—in other words, I could've wound up in my second trimester before I actually knew I was pregnant. I wasn't a child, and I was a person of relative privilege, with access to education and options. In Justice Ginsburg's dissent, a footnote reads: "Adolescents and indigent women, research suggests, are more likely than other women to have difficulty obtaining an abortion during the first trimester....Minors may be unaware they are pregnant until relatively late in pregnancy, while poor women's financial constraints are an obstacle to timely receipt of services." While Ginsburg probably wanted to emphasize that restricting second-trimester abortions would have a discriminatory impact, it would be equally useful, I think, for the Court's majority to consider that their daughters—or for that matter, anyone for whom sex is a layered, emotionally charged, not always rational act—could end up where I found myself. In only imagining scenarios involving the indigent, the uneducated, the decidedly nothing like them, the justices may be comforting themselves, but they're laboring under a delusion.—Dani Shapiro

The Time is Now
The former head of Planned Parenthood says you don't need to take it lying down

The Gonzales v. Carhart decision felt like a bungee snapping me back to 1950s west Texas, where as a girl I absorbed the culture's (non)aspirations for women. I hid my intelligence and dreams of writing, married my high school sweetheart, had three babies by age 20, and stuffed my life into a Suzie Homemaker mold.

Eventually these injustices pinched too much to accept. My inchoate yearnings for self-determination were given voice by the 1960s feminist movement, while new technology—the birth control pill—made my awakening possible. I wanted my daughters to have more opportunities. I knew firsthand that for a woman to shape her destiny, she must be in charge of her fertility.

The Roe v. Wade decision legalizing abortion in 1973 seemed like just another logical step toward equality. But, as Rita Mae Brown said, "If the world were a logical place, men would ride sidesaddle."

The fierce antichoice backlash that erupted when Roe was decided crested with the recent Gonzales decision. The ruling's language drips with such disrespect for women that Justice Ruth Bader Ginsburg charged it "reflects ancient notions about women's place."

Yet in the 34 years since Roe, I've been shocked to observe that some of these ancient notions still remain. As president and CEO of Planned Parenthood Federation of America for nearly a decade until 2005, I repeatedly saw how men's and women's support of the right to a safe, legal abortion wavered according to the extent to which they considered a woman to be in control of her own life. If she's a victim of rape or incest, about 75 percent approve of the procedure, according to Gallup. But only a little more than one third approve when the woman or family say they can't afford to raise the child. Ask if the decision should be between a woman and her doctor, and around 60 percent agree; ask whether the woman alone merits the freedom to make that choice, and far fewer do.

At first I thought: How little trust people have in women's moral capacity to make decisions! Then I realized the idea of women having the power to decide is what sticks in craws. When women are victims, "ancient notions" aren't disrupted. When we exercise our volitional powers over procreation and thus our own lives, we profoundly upset the ancient gender applecart.

Gonzales v. Carhart opened the door to outlaw all reproductive rights. But just because politicians can pass abortion bans doesn't mean they must pass them. It's up to us to tell politicians what we want at the ballot box. Abortion isn't just about a medical procedure or about babies. It's about whether women will have an equal place in society, including the human right to make our own childbearing decisions. I'd add that it's time for women to gain a stronger sense of our own worth. That's ultimately how we can reverse the Court and cut the cord pulling women back to the choiceless 1950s.—Gloria Feldt

A Mother Knows Best
When a 38-year-old woman discovered her pregnancy had gone horribly wrong, she had to make the hardest decision of her life

At 38, she was the happily married mother of a three-year-old. Eager for a second child, she and her husband were thrilled to learn that she was expecting twins. The first five months of the pregnancy were fine, but then an ultrasound revealed that one fetus had died. The other was still alive, but its head was grotesquely enlarged.

"This doesn't look good," the doctor told her. But there was a remote possibility that the brain swelling might subside, so he asked his patient to wait a week before deciding what to do. "That was the absolute worst week of my entire life," says the mother, who agreed to tell her story anonymously. The woman spent the week in seclusion with her family, praying. The fetus' condition did not improve.

She then faced a stark choice: end the pregnancy or spend the next four months carrying a doomed fetus and the decaying corpse of its sibling. She finally decided on what opponents of the procedure now call a partial-birth abortion. "I knew this was the right thing for the baby," she says. "There was a slim possibility that he could survive until delivery, but he would have died."

The procedure was harrowing. "I could hear everything, feel everything," she says. "They were talking about getting body parts. I had nightmares afterward." She nonetheless strongly believes that she made the right choice. "Nobody would do this out of 'convenience,' just because they changed their mind," she says. "It seems to me that only a man could say that. My mother has always been pro-life, but there was no question for her that this was the right thing to do."

The woman, who later had a healthy second child, was "shocked and furious" about the recent Supreme Court decision. "I can't imagine a politician being able to say, 'You've got to carry this baby to term,'" she says. "That a stranger would have the power to interfere in the hardest time in my life—it's unthinkable."—Leslie Bennetts

What Kind of Life?
The best research to date suggests that the vast majority of women who have abortions aren't plagued by regret. One tells her story

Justice Anthony Kennedy wrote: "While we find no reliable data to measure the phenomenon, it seems unexcep­tionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow."

It is unexceptionable to conclude that Justice Kennedy and his four concurring justices have never created and sustained an infant and do not have degrees in psychology. They do admit that they have no reliable data, but apparently base their "unexceptionable" conclusion on the old norm for determining what is pornographic—that is, they know it when they see it.

Having personally created, sustained, and aborted fetuses myself, and further, having talked with many women who have done the same, I'd like to offer my own reliable data for the Court's future forays into the tricky realm of female mental health, and—let's face it, because this is what they are alluding to—female spirituality.

I begin with a June evening in Salamanca, in western Spain. I am sitting in the late light with a man I love. Families stroll aimlessly, casting shadows onto the sand-colored stones of the plaza. We are sipping vino tinto at a small round table, watching the remains of the sun turn the dust golden. I feel the future in that light, a realm of glorious possibility. In the years to come, I will go to Paris, to Istanbul, to the shores of the Indian Ocean. I will have countless transcendent moments, including the births of our children.

Rewind about two years before Salamanca. I am five weeks pregnant with an embryo created with a man I'm not sure I love. What I know with certainty is that I face a life that looks something like this: I marry a man who doesn't inspire me. We buy a stroller and a crib. I tether myself to diaper bag and stroller. Together, we three share a roof until death do us part. Or: I don't marry him, but I have his child. I tether myself to stroller and crib, and when I can get away, it is only to scrape and scratch out a living as a single mother—a role I've never wanted, although I know many women eagerly choose it, or gracefully accept it.

Either way, I'm bitter, unfulfilled, driven mad by the crushing weight of the parenthood I didn't want. Severe depression and loss of esteem (in the eyes of the world or the self—Kennedy curiously makes no distinction—but what difference does it make at this point?) follow. That's my parallel universe, the realm of quiet desperation, suffocating sacrifice, a place where to long for the transcendent is to wish for death. My version of hell.

Many foes of abortion believe in a heaven after this life, a heaven where I will meet my aborted fetus again in a glow more golden than that late June light in Spain, and where this vale of tears is but a dim, dark memory. With all due respect to their beliefs, I believe in transcendence here on earth. It exists in independence, self-determination, and love, none of which is possible in the universe Justice Kennedy and friends are crafting. For the psychological record, I don't regret that abortion; it has not depressed me, nor lowered my worldly or self-esteem. (I'm not putting my name on this essay, but I'd proudly do so if it weren't against my employer's policy to express political views.) On the contrary, it was a crack in a wall that I found in the nick of time, fleeing an infinitely depressing place.

I know that I transmit my notion of the joy inherent in this world to the children that I did choose to have. And I know that my children are better, more hopeful, and healthier people for it.

You Don't Choose—You Lose

Many of our readers wondered, after seeing our piece on the recent Supreme Court decision known as Gonzales v Carhart ("The Incredible Shrinking Woman," August ELLE)—which upheld a federal law allowing Congress and state legislatures to criminalize a form of abortion without regard for the woman's health—what the ruling could mean for the future of abortion rights. We asked Gloria Feldt, author of The War on Choice and the former president and CEO of Planned Parenthood Federation of America, to lay out a couple of scenarios:

GLORIA FELDT: That depends on who's president, who's in control of Congress, who's on the Supreme Court, and who's in charge of state legislatures and sitting in the governor's seat. Because the Bush administration will have had eight years to fill the federal courts with antichoice judges, it's unlikely that the courts will protect what is left of Roe. This makes the electoral process more important than ever. What happens from here depends on each of us as citizens and voters.

ELLE: What if the Democrats sweep in 2008—what could that mean for reproductive rights?

GF: If the current political climate that favors Democrats prevails, the Congressional leadership may try to pass the Freedom of Choice Act, sponsored by Barbara Boxer (D-CA) in the Senate and Jerry Nadler (D-NY) in the House, which would codify reproductive freedom as a civil right, rather than as primarily a right of privacy as Roe (for now) guarantees. This would give women the protection of federal law. But its passage is not guaranteed even in a Democratic Congress because not all Democrats are pro-choice.

ELLE: What do you mean by reproductive freedom being a civil right?

GF: I mean individuals—in this case women—have the right to equal protection under the law when it comes to decisions about the number and spacing of their children. But reproductive rights are not just dry legal theory; they are rooted in fundamental human rights: those 'inalienable" rights every individual is born with. Think of the classic line we all know from the Declaration of Independence: "life, liberty, and the pursuit of happiness." The human right to make our own childbearing decisions without government interference is increasingly recognized in international law. It's the philosophical basis for all reproductive justice, including legal rights (nondiscrimination, access to health care, freedom from sexual assault and coercion, privacy), the moral framework (bodily integrity, freedom of religion and conscience, reproductive self-determination), and practical access to birth control, sex education, and equality of economic opportunity. Together, these allow women to make our decisions freely and responsibly about whether, when, and with whom to beget or bear a child—you might say, to have the right to our own lives.

ELLE: And how about if the right wing continues to dominate the balance of power?

GF: If the right-wing court and lawmakers continue to hold the key positions at all levels of government, Roe is likely to be chipped away till it's gone—or toothless. To the extent that fetal life continues to be privileged by law over women's health, the right to make our own childbearing choices is increasingly vulnerable. Antichoice groups will work to ban other abortion techniques, as well as pass additional restrictions to make abortion inaccessible even if it isn't illegal. For example, 87 percent of U.S. counties have no abortion provider today as a result of existing laws and antichoice harassment. At the state level, you already see the introduction of more restrictive abortion laws—in South Dakota, for instance, which defeated its strict abortion ban last year by ballot initiative, the state legislature is starting over and proposing a new and slightly less restrictive ban. Also, some states are looking to pass "trigger laws," meaning that as soon as Roe is overturned, their abortion bans would take effect.

ELLE: So much of this process feels inevitable. Is there anything that those of us on the sidelines can do?

GF: I always say that abortion isn't just about abortion; it's about whether women will have an equal place in society. The most important step towards guaranteeing this is to use your voice. If you can see reproductive rights as a human right, then demand that Congress and states pass the Prevention First Act and the Freedom of Choice Act, for starters. Join activist networks and attend your representatives' town hall meetings, where you can hold them accountable by asking how they voted or will vote on the issues. And it's crucial to grasp just how much elections matter to your daily life. Check your voter registration now so you know it's up to date and remind 10 of your friends to do the same. Be sure to vote in your state's primaries as well as general elections, since many elections are effectively decided at the primary level. These are the basics, but if you want to multiply your influence tenfold, volunteer to help a candidate. If you can give a few hours a week, just call up the local campaign office—they always need people to monitor websites, help with mailings and phone calls, and organize events. It's fun and you'll meet the most interesting people. And consider running for office yourself! Women's leadership has never been more needed—or welcomed.